from the the-juice-is-loose dept

In the middle of summer last year, we discussed a somewhat strange trademark fight between BrewDog, a Scottish Brewery that has been featured in our pages for less than stellar reasons, and the Elvis Presley Estate. At issue was BrewDog's attempt to trademark the name of one of its beers, a grapefruit IPA called "Elvis Juice." With no other explanation beyond essentially claiming that any use of Elvis everywhere will only be associated in the public's mind as being affiliated by the 1950s rock legend, the Estate opposed the trademark application. Initially, the UK Intellectual Property Office sided with the Estate, despite the owners of BrewDog both pointing out that they were simply using a common first name and that they were actually taking the legal course of changing their first names to Elvis to prove their point. Not to mention that the trade dress for the beer has absolutely nothing to do with Elvis Presley. We wondered, and hoped, at the time if BrewDog would appeal the decision.

Well, it did, and it has won, which means Elvis Juice is free to exist and the order that BrewDog pay the Elvis Estate costs for its opposition be vacated.

Now, after a three-year battle the firm has overturned a ruling banning them from using the name and and order to pay Presley's estate £1,500 in costs has been scrapped. The ruling means BrewDog will no longer have to change the name or apply to the Elvis estate for official permission to use it.

It's the right end-state for all of this, but you have to wonder why it took an appeal process to get here. Again, you can see the trade dress for the beer in our original post and you will see that there is absolutely nothing in the way of a call-back to Elvis Presley. In other words, the opposition from the Estate rested solely on the claim that virtually any use of a common first name would be associated with the long-dead Elvis Presley. Arguably, Presley may not even by the first singer to leap to mind in the European market, where Elvis Costello is still, you know, alive. This whole thing smacked of pure audacity on the part of the Estate.

But let's remember that BrewDog has had to deal with this mess for the better part of a year. To those that would claim that trademark bullying isn't all that big a problem, tell that to the two Elvises (Elvisi?) that own BrewDog.

from the it-tolls-for-thee dept

Nearly three years ago, Bell's Brewery, whose products I used to buy greedily, decided to oppose a trademark for Innovation Brewing, a tiny operation out of North Carolina. The reasons for the opposition are truly difficult to comprehend. First, Bell's stated that it uses the slogan "Bottling innovation since 1985" on some merchandise. This was only barely true. The slogan does appear on some bumper stickers that Bell sells and that's pretty much it. It appears nowhere in any of the brewery's beer labels or packaging. Also, Bell's never registered the slogan as a trademark. Bell's also says it uses the slogan "Inspired brewing" and argues that Innovation's name could create confusion in the marketplace because it's somehow similar to that slogan.

This is a good lesson in why trademark bullying of this nature is a pox on any industry derived largely of small players, because it's only in the past weeks that the Trademark Trials and Appeals Board in Virginia has ruled essentially that Bell's is full of crap.

The federal Trademark Trials and Appeals Board in Virginia says there is little chance of confusion by consumers and dismissed Bell’s action on Dec. 20.

Bell’s says it is moving on. “We respect the Trademark Office’s decision and look forward to doing business as usual,” the brewery said in an emailed statement to Xpress.

That's simply not good enough. Innovation is roughly one-sixtieth the size of Bell's, producing 500 barrels a year, and representing a zero threat to the much larger company. And, yet, for three years Innovation has been tied up in this federal action trying to simply register the name of the brand upon which it built its small business. Also, and I cannot stress this enough, the claims that Bell's was making were plainly absurd. Those claims included stating that the words "innovation" and "inspired" had the same or similar meanings to the degree the public would be confused. They don't. It attempted to block a trademark over a slogan it barely uses and never registered. There was never any reason to do any of this.

Yet, we have three years of bullying action. At the end of that bullying, Bell's gets to waltz away and say it is "moving on", with the legal costs representing a decimal point on its ledger, whereas Innovation has no such war chest and was almost certainly impeded in its business having to deal with all of this. If that isn't the kind of thing the legal system should be better designed to handle, I cannot imagine what would be.

from the shame-on-you dept

The Super Bowl is here and this Sunday many of us will bear witness to the spectacle that is million dollar advertising spots mashed together over four hours with a little bit of football thrown in for intermissions. As we've discussed before, this orgy of revenue for the NFL is, in some part, propagated by the NFL's never ending lies about just how much protection the trademark it holds on the term "Super Bowl" provides. While the league obviously does have some rights due to the trademark, it often enjoys playing make believe that its rights extend to essential control over the phrase on all mediums and by all persons for all commercial or private interests. This, of course, is not true, and yet a good percentage of the public believes these lies.

Why? The NFL, pantheon of sports power though it may be, is not so strong as to be able to single handedly confuse millions of people into thinking they can't talk about a real life event whenever they want. No, the NFL has been helped along in this by members of the media who repeat these lies, often in very subtle ways. Ron Coleman of the Likelihood Of Confusion site has a nice write up publicly shaming a number of these media members, including Lexology's Mitchell Stabbe.

At Lexology, Mitchell Stabbe writes a post about why the SUPER BOWL® is the specialest trademark ever, laying out a thorough analysis of “activities that create a significant risk of an objection by the NFL.” He soberly notes that while the NFL failed in its effort to register THE BIG GAME, “The NFL also has federal trademark protection for 'Super Sunday', 'Gameday', 'Back to Football', '1st and GOAL' and over a hundred other marks.”

Except that Stabbe's analysis of how to avoid the ire of the NFL includes such advice as suggesting that businesses not wish teams or players good luck, for newspapers not to have any special sections covering the Super Bowl be sponsored by any companies, and for restaurants and bars not to use the term in any watch parties they have for the game. In case it isn't clear, none of those are matters of actual trademark infringement necessarily. Stabbe doesn't bother to point out that there's no likelihood of confusion in the marketplace here, and that basic nominative fair use (i.e., naming the thing you're talking about) is not going to dilute a trademark either. These types of advice columns, seemingly from experts on the subject, undermine the public's awareness of its own rights when it comes to using language.

Another example has media members acting as though there is special space carved out just for them, or certain members of the public, to use the phrase "Super Bowl."

In a post at a website called “SB Nation” owned by Vox Media, Jeanna Thomas noted a year ago, quite correctly, that “The NFL keeps firm control over its trademark on the words ‘Super Bowl,’ and that control makes the league a whole lot of money.” Unfortunately, the next sentence starts, “The Super Bowl (we can say it, because here at SB Nation we write about sports,” which would be bad enough without being topped by the double-barreled whopper to the effect that “Private citizens are fine to use the phrase without consequence, as long as there’s no financial consideration involved.”

It should be clear that all of these "we're barely safe to use this term and avoid the NFL's team of lawyers if we follow these very strict rules" creates the impression that the majority of the rights to use the term belong to the NFL, with a tiny bit leftover for the public. This is not how trademark law works. Trademark rights are limited in scope and infringement is reserved for particular circumstances. Just because the NFL pretends otherwise does not make it so, except it can become effectively so with people who should know better repeating these lies.

So have fun watching the Super Bowl. I can say that because I'm a blogger, I submitted six forms of identification and a urine sample to Roger Goodell's office (unsolicited, by the way), and I have created a totem to pray to my lord and savior Tom Brady, made out of a combination of salami, sharp cheddar cheese wedges, and pickle slices. If I hadn't... well, let's just say I'm happy to still be alive.

from the gaming-the-system dept

As readers of this site will know, once-venerated gaming giant Atari long ago reduced itself to an intellectual property troll mostly seeking to siphon money away from companies that actually produce things. The fall of one of gamings historical players is both disappointing and sad, given just how much love and nostalgia there is for its classic games. It was just that nostalgia that likely led Nestle to craft an advertisement in Europe encouraging buyers of candy to "breakout" KitKats and included imagery of the candy replacing a simulation of a game of Breakout. For this, Atari sued over both trademark and copyright infringement, stating for the latter claim that the video reproduction of a mock-game that kind of looks like Breakout constituted copyright infringement.

As we discussed in that original post, both claims are patently absurd. Nestle and Atari are not competitors and anyone with a working frontal lobe will understand that the ad was a mere homage to a classic game made decades ago. If the products aren't competing, and if there is no real potential for public confusion, there is not trademark infringement. As for the copyright claim, the expression in the homage was markedly different from Atari's original game, and there's that little fact that Nestle didn't actually make a game to begin with. They mocked up a video. Nothing in there is copyright infringement.

It was enough that I'm certain some of our readers wondered why Atari would do something like this to begin with. The answer is the recent news that a settlement has been reached in the lawsuit, and it was almost certainly that settlement that Atari was fishing for all along.

Vintage gaming company Atari has settled a lawsuit accusing Swiss foods giant Nestle of using one of its classic video games to sell Kit Kat bars to nostalgic gamers without permission. On Wednesday, U.S. District Judge Yvonne Gonzalez Rogers approved Atari’s request to voluntarily dismiss the case with prejudice.

Both parties reached a settlement during a conference in Magistrate Judge Sallie Kim’s courtroom on Dec. 12, 2017, according to court records. The terms of the agreement are confidential.

So, while we don't know the terms of the settlement, it's incredibly common for megaliths like Nestle to throw settlement money at pests like Atari to make them go away. The settlements are often not anything like the potential rewards for the plaintiff if the case had gone to trial, but that's entirely besides the point. The point is to get the settlement. It's essentially free money, after all, reliably gained by filing lawsuits trolling successful companies with spurious legal claims that at best skirt the line of what intellectual property laws actually say.

It's for that reason that trolls like Atari seek treble and punitive damages in these suits, merely as a way to alter the risk calculation for the legal teams of their victims. A company like Nestle, worth hundreds of billions of dollars, has easy math to do when it comes to deciding how to make this all go away. The problem with this is, of course, that not every company has billions of dollars of revenue coming in. It's the smaller companies that are truly victimized by IP trolls that fill their war chests with these kinds of easy settlements.

from the huzzah dept

For some time, we've been following an odd trademark dispute between the city of Portland and a small brewery, Old Town Brewing, all over a famous city sign featuring a leaping stag. Old Town has a trademark for the image of the sign and uses that imagery for its business and beer labels. Portland, strangely, has pursued a trademark for the very same market and has attempted to invalidate Old Town's mark for the purpose of licensing the image to macro-breweries to fill the municipal coffers. What I'm sure city officials thought would be the quiet bullying of a local company without the breadth of legal resources Portland has at its disposal has instead ballooned into national coverage of that very same fuckery, with local industry groups rushing to the brewery's aid.

The end result of all of this has been several months of Portland officials looking comically bad in the eyes of the public. Of all places, the people of Portland were never going to sit by and let their city run roughshod over a local microbrewery just so that the Budweisers of the world could plaster local iconography over thin, metal cans of pilsner. And now, despite sticking their chins out in response to all of this backlash for these past few months, it seems that the city has finally decided to cave in.

The city has surrendered in a battle over who gets to use the iconic image of a leaping stag from the Portland Oregon sign and will not seek a trademark that would conflict with one already owned by a local brewery. The city will give up on obtaining a trademark that it could license to any beer or alcohol company to use on cans, bottles, glasses, packages or tap handles. In return, Old Town Brewing will allow Portland to grant alcohol companies the right to use the image of the famous sign on local advertising.

It's a good resolution to a dispute that never should have existed. Trademark law has become problematic generally, and in the craft beer industry more specifically, but there was nothing in what Old Town was doing that was improper. The brewery had a local connection to Portland, properly attained a trademark for the image of the sign, and then had to deal with the city pretending that none of that was true. In the end, the city has essentially accepted what Old Town's ownership suggested at the start of all this: go get your trademark, just don't tread into the alcohol market.

Before the negotiations, Milne had faced an uphill battle against the city to defend his trademark. He had advocated for more than a year that the city simply seek a trademark that did not infringe on beer, wine and alcohol. That's exactly what the city has agreed to do now. Milne will file a letter with the U.S. Patent and Trademark Office encouraging the agency to grant Portland's trademark application so long as it does not cross over into the category of beer, wine and alcohol.

And thus ends this David and Goliath story, with Goliath once again slain. Salud.

from the comic-can dept

In the wake of San Diego Comic-Con winning its years-long lawsuit against Salt Lake Comicon over its trademark on the term "comic-con", much of the media coverage was somewhat apocalyptic as to what the consequences would be for cons across the country. Despite the payout for winning the suit being a paltry $20k, more focus was put on just how other cons would react. The early returns are mixed, with some proactively undergoing name-changes to avoid litigation and others staying stalwart. The point we have made all along is that this win for SDCC was not some ultimate final act on the matter.

The Salt Lake lawyers filed the paperwork on Tuesday in response to last month’s eight-day trial in U.S. District Court, during which jurors decided that the California convention’s trademarks are valid. The jury found that the infringement was not willful and awarded $20,000 in damages to the San Diego Comic-Con, which had sought $12 million.

It will be very interesting to see where this goes, because many of us that observed the goings on of the initial trial were surprised at its outcome. From a trademark perspective, the arguments for genericide raised by SLCC seemed quite obvious. The evidence of genericide is present in every bit of follow up coverage one sees dealing with how many other shows with some version of "comic con" in their names are either changing those names or standing firm and continuing to use them. The phrase is everywhere in the industry, which only makes sense, given that the phrase is essentially nothing more than a description of the type of show being conducted. Part of the issue raised in the filing for a new trial appears to be how much the jury was allowed to hear about other cons using the term nationwide.

Part of the excluded evidence was testimony about the use of “comic con” by third-party competitors, which could make the term generic, the motion says. In addition, according to the motion, the trial judge gave a defective instruction that said competitive use is inadequate to establish genericness.

It's easy to see how such misguided instructions and barring of relevant evidence would give rise to such an erroneous verdict. Regardless, it seems likely that there will be more to come in round two of the wrath of cons.

from the the-game-that-shan't-be-named dept

Every year, right about this time, this site is forced to remind everyone that the NFL is completely full of crap when it comes to how it enforces its supposed trademark rights for the Super Bowl. While the NFL does indeed have some rights to the phrase and to controlling how it's used, those rights generally amount to prohibiting companies from falsely implying sponsorship of the game or a relationship with the NFL in commercial speech. What the NFL pretends is the case, on the other hand, is that it can somehow prohibit any company from even mentioning the Super Bowl in any context, up to and including simple factual statements.

All of this leads to the absurdity of every company that has chosen not to sponsor the NFL diving into the euphamism business, gleefully referring to the Super Bowl by any other name. "The Big Game" is the most popular of these, although the NFL has actually gone so far as to look into trademarking that phrase as well. The end result is the Picasso-ing of reality in which companies make references which every member of the public gets but that fall short of calling the NFL's biggest show by its proper name, something you would think the NFL would want everyone everywhere talking about.

With the Super Bowl a week away, we're already seeing this practice ramp back up. In Philadelphia, the home city of one of the competing teams, some small local businesses are getting into the act in hilarious ways.

Bethlehem’s SteelStacks campus announced Thursday it’s hosting a ‘watch party’ for the Big Game, and used clip art in place of NFL logos. One ArtsQuest staff member also tweeted a tongue-in-cheek ‘FLY [REDACTED] FLY!’ with a graphic advertising the event, which references Birds (but not Philadelphia Eagles) and includes a small gold cup instead of the Lombardi Trophy.

That is some glorious clip art right there. But just let it sink in how dumb this all is. Every viewer of that image is going to know that it's an advertisement for a watch party for the Super Bowl in which the Eagles are playing. Yet, because of the NFL's status as a fullblown bully-monster that's perfectly willing to throw gobs of expensive legal prowess over something as small as a watch party at a bar, out comes the clip art, the references to the "Big Game", and the Eagles suddenly become the "birds." And literally nothing is accomplished. The public will view this image with the exact same understanding as if it contained the phrase "Super Bowl", yet it somehow satisfies the NFL. That's just stupid.

The NFL gets a lot of value out of its corporate sponsorships, no doubt. There have been something like five billion dollars spent on ads throughout the history of the game. Why the league continues to pretend it has rights it doesn't have when companies accurately referring to the game's name are no threat at all is beyond me.

from the pron-coin dept

The last time we checked in with Vice Media it was firing off a cease and desist letter to a tiny little punk band called ViceVersa, demanding that it change its name because Vice Media has a trademark for the word "vice" for several markets. In case you thought that occurrence was a one-off for Vice Media, or the result of an overzealous new hire to the company's legal team, Vice Media is again trademark bullying another comany, Vice Industry Token. VIT is apparently a pornography cryptocurrency company, which is a three-word combination that I bet god herself could never have imagined being uttered. The claim in the C&D notice that VIT got is, of course, that Vice Media has a "vice" trademark and that this use infringes upon it.

Vice Media sent a cease-and-desist letter to the digital upstart in November, alleging its "Vice Industry Token" trademark infringes on its rights to "Vice," according to a complaint filed Friday in California federal court.

As noted, VIT is going to court to declare its use of the word "vice" non-infringing. The complaint as filed does not offer up the reasoning VIT has for its use to not be infringing, but it's fairly easy to guess. Vice Media is a major media company playing in a variety of markets, from magazines to music and journalism. It is not, however, the following:

VIT offers its proprietary cryptocurrency and also operates an adult entertainment platform, which, according to the complaint, are together designed to "change the nature and monetization of pornography."

There is simply nothing between the two entities that represents a competitive situation. Given that, I have to expect that the court will side with VIT, which was quite smart in seeking this declaratory judgement. What that will not answer, though, is why Vice Media ever thought any of this was necessary to begin with.

from the war-on-ice dept

This post will come as no surprise to those of us super-interesting people that for some reason have made trademark law and news a key fulcrom point in our lives, but the United States Army has filed an opposition to the trademark application for the Las Vegas Golden Knights. Some background is in order should you not be one of the roughly twelve of us in America that are hockey fans.

Starting around 2007, the United States Army went on something of a trademarking spree, filing for marks long in use, including some of the monikers for well known units and/or what I would call "show units", or units that chiefly serve to be seen at entertainment venues such as air and water shows. Included in these marks were the Army's "Black Knights" mascot for its military academy athletic teams and its Golden Knights paratrooping unit that performs at air and water shows all over the country. The army uses these trademarks to rake in millions of dollars in merchandise.

The Las Vegas Golden Knights is an NHL expansion hockey team started by a graduate of West Point, Bill Foley, who wanted the team's garb and name to serve as an homage to his military roots. To that end, he had initially wanted to name the team "The Black Knights", but switched to "The Golden Knights" after the Army voiced its displeasure. The color scheme for the team is a clear call back to the paratrooping team that shares the name.

The Army also highlights public comments made by Golden Knights officials where they admit to trying to connect to the Army. For instance, last July, Golden Knights general manager George McPhee revealed to The Washington Post’s Aaron Torres that the Golden Knights’ color scheme of black, gold, yellow and white was intentionally selected for its similarity to a color scheme used by the Army at West Point. “Bill Foley is a West Point guy,” McPhee noted. “You know his history at West Point. You know about the classmates he had that he lost serving this country. So, those colors mean a lot to us, and will mean a lot to our players. And we’re really proud of the logo. It’s clean, it’s symmetrical, it’s kind of bold and again it stands for something.”

Except that none of that makes any of this trademark infringement. For trademark infringement to have occurred, there needs to be either real or a reasonable likelihood of confusion in the market. While the US Army does sponsor professional sports leagues, and while its paratrooping Golden Knights do put on a show, none of that puts them in the same commercial marketplace as a professional hockey team. And I will say, as an aside, the concept that the United States Army, defenders of the free world, with all of its storied history and tradition, has been reduced to an intellectual property fight over a respectful homage in the professional sports commerce battleground is just sort of gross.

For its part, while the Las Vegas Golden Knights have until late February to respond to the opposition, the team's public statement on the matter doesn't indicate that it will be surrendering to the Army any time soon.

“In the Patent and Trademark Office, the U.S. Army filed its opposition to the Vegas Golden Knights’ applications to register the trademark VEGAS GOLDEN KNIGHTS used in connection with the sport of hockey. We strongly dispute the Army’s allegations that confusion is likely between the Army Golden Knights parachute team and the Vegas Golden Knights major-league hockey team. Indeed, the two entities have been coexisting without any issues for over a year (along with several other Golden Knights trademark owners) and we are not aware of a single complaint from anyone attending our games that they were expecting to see the parachute team and not a professional hockey game. That said, in light of the pending trademark opposition proceedings, we will have no further comment at this time and will address the Army’s opposition in the relevant legal forums.”

Unless the Army wishes to trivialize its reputation even further, hopefully this opposition will be the one and only pushback on the NHL team it will make.

from the fuck-off-southwest dept

In the past, I've been a pretty big fan of Southwest Airlines. On many routes it has been my first choice for flights. However, after digging into a new lawsuit the company filed earlier this month, I'm pretty close to swearing off Southwest forever. I can't support this kind of bullshit legal bullying. First off, Southwest does have a bit of history legally bullying sites that improve the Southwest experience. Back when your seating on Southwest really depended on how close to 24 hours prior to your flight that you checked in, there were a few services that would automate checking you in at exactly the 24 hour mark, and Southwest sued to shut them down. The company has also threatened tools that merely scraped Southwest fares -- which could be kind of useful, since Southwest doesn't share its fares with popular flight info aggregators like Kayak and Expedia.

It is somewhat questionable whether or not Southwest actually has a legal right to block that -- pricing info is not covered by copyright -- but there are lots of attempts these days to twist laws to argue that merely putting something in a terms of service is enough to create a legal obligation.

Enter a new site: SWMonkey.com. The idea behind the site is fairly simple. Because Southwest Airlines (unlike basically every other airline) actually has no fees to change your flight, if you spot your same flight available for less, you can call Southwest and basically exchange your ticket for the new ticket and get credit for future flights (and sometimes even cash back). Southwest, of course, relies heavily on the idea that not many people take advantage of this. SWMonkey's clever idea was to monitor price changes for you, and alert you if the price on your flight dropped significantly. The site charged a $3 fee if it could save you $10 or more.

The site launched in November and Southwest sent a fairly obnoxious cease and desist letter to SWMonkey almost immediately after it launched. The crux of the cease and desist was that what they were doing was trademark infringement.

It has come to Southwest's attention that you are using Southwest's proprietary and trademarked names and logos in connection with your business. This is misappropriation of Southwest property, an infringement upon Southwest's proprietary rights, and is confusing and misleading to Southwest's customers.

Almost all of that seems to be complete bullshit. While it is true that SWMonkey was using Southwest's name, it was doing so to correctly identify that its service helped you save money when flying Southwest. That's known as nominative fair use (using someone's trademarks to correctly identify them). The idea that it was "confusing and misleading" is pure hogwash. Since the entire point of the site was to help you save money on Southwest, it's ludicrous to suggest that anyone would be confused into believing that the site was run by, or even blessed by, Southwest.

At first, SWMonkey put up a perhaps ill-advised blog post (prior to having a lawyer review it) insisting they weren't going to be intimidated and spouting some slightly confused legal theories. That resulted in more legal threats and eventually the decision to stop operating the service. In shutting off the service, they noted that they had made a grand total of $45 in the few weeks that the service operated -- meaning that a grand total of 15 people had successfully used the service.

This was bad enough, and you would think that Southwest's lawyers could be happy that the thousands of dollars in legal fees they had spent in angrily going after this cool project and had stopped a couple of guys from making any more than their $45. But, no. Southwest sent an even angrier cease and desistafter the site had stopped offering its service. Now the complaint was that even though SWMonkey was no longer working, it had dared to leave the non-working site up. I'm not kidding.

Despite a series of correspondence over the past week, Southwest is surprised and disappointed that your clients are not willing to completely shut down the Website. It is not clear to Southwest why your clients are refusing to comply with our demand given the obvious legal risks here.

Part of the anger appears to be that, in closing the site, SWMonkey also linked to a tool on Github that would allow those with the technical knowhow to monitor changes in Southwest prices. The tool does not appear to have been created by SWMonkey. And, notably, at some point in the past few weeks, that tool has disappeared from Github. And, no matter what, all SWMonkey did was link to it.

Not only that, but the bumptious legal threat includes vague claims of possible criminal violations for leaving the website up.

They want us to “cease operation of the website” completely. Why? We are not scraping their site anymore. We are not infringing on their copyrights or trademarks. We are nothing but a historical remnant of a really great service, and the links and blog posts that remain on our site are certainly not illegal.

SWMonkey is nothing more than an informational page and Southwest just sent us a cease & desist letter demanding that we disappear. It seems to me that Southwest's only goal here is to limit our freedom of speech, because at this point, that's literally all we have. After reading and rereading their letter, I can't find a single allegation with any basis. "Obvious legal risks"!? What obvious legal risks? We already disabled the service. They mention that the revised form of the site has issues, and imply that they can come after us for violating Texas criminal law, trespassing, civil conspiracy, and unjust enrichment. I would refute these claims by reminding them that not only are we not violating any Terms, we are not accessing the southwest.com website, and we are not even pursuing this as a commercial venture. We just felt that our users should know why a site that they trusted to share credit card and flight information with, has suddenly shut down their service.

At the top of page two, you indicate that a "revised form" of the website is being maintained which "raises additional issues." Without offering a clue about what you regard as those additional issues, you mention that Southwest, in prior litigation, has pursued claims for violation of Texas Criminal statutes, trespass, civil conspiracy, and unjust enrichment. As an aside, I could find no private right of action for Texas Penal Code §33.02; indeed, quite the contrary appears to be the case. See Hodson v. Moore, Civil Action No. 2:15-CV-453 (S.D. Tex. Sep. 23, 2016) ("However, the Texas Penal Code does not create a private cause of action. Aguilar v. Chastain, 923 S.W.2d 740, 745.... Further, I note that it is a violation of the Texas Disciplinary Rules of Professional Conduct to threaten criminal charges to gain advantage in a civil matter. See Rule 4.04(b)(1). It remains unclear whether the causes of action you reference at the top of page two of your letter refer to the functional website swmonkey.com, or the currently disabled version of the website, or are made merely to instill fear. Please clarify.

You then turn to Southwest's trademark claims. Again, it is unclear whether you are referencing the former version of the website or the disabled version. Regardless, the website swmonkey.com does not now, nor has it ever, violated Southwest's trademark rights. Any use of the word "Southwest" on the swmonkey.com website qualifies as nominative fair use in that it merely refers to your client. See Pebble Beach Co. v. Tour 18 I Ltd., 155 F.3d 526 (5th Cir. 1998). Further, because of the nature of the service offered in the prior version of swmonkey.com, it would be virtually impossible for one to assume that the services were being offered by, sponsored by, or affiliated with your client. As a further precaution, a disclaimer appeared (and continues to appear) at the bottom of the website placing users on notice that "SWMonkey is not affiliated with Southwest Airlines or any of its partners in any way." Given that swmonkey.com is no longer being used to offer any commercial service, we are perplexed as to why Southwest is insisting that the "entire website" be taken down. It would appear that Southwest is merely trying to use the legal system to curtail Roundpipe's free speech rights.

The current swmonkey.com website is even further removed from trademark infringement than the Southwest virtual airline website at swavirtual.com which I previously brought to your attention. Given that Southwest has acquiesced in the existence of swavirtual.com for the past nine years, I do think a court would be sympathetic to your arguments that swmonkey.com is creating consumer infringement.

Finally, you suggest that Southwest will take formal action for Roundpipe's prior alleged violation of Southwest's Terms and Conditions (based on conduct which has ceased) unless Roundpipe complies with all of Southwest's demands. Given that Roundpipe is no longer in violation with Southwest's Terms and Conditions, the demands in your letter seem to be little more than legal extortion.

Southwest Airlines decided to sue a couple of guys who had ALREADY SHUT DOWN THEIR SERVICE which helped more people enjoy Southwest Airlines, and from which they'd only made $45, because they left the site up explaining why they shut down the service.

That's fucked up. And that's why I have no interest in flying Southwest Airlines ever again. And I can assure you I spend a lot more than $45 on Southwest.

But let's get into the actual lawsuit. Claim one is breach of contract. What contract? The complaint argues that by merely accessing Southwest's site, they have formed a "contract" with Southwest on the basis of Southwest's terms of service. This is a very twisted (and incorrect) view of contract theory. While there are some (unfortunately) mixed rulings in the courts regarding "clickthrough" or "browsewrap" contracts, this is a particularly ridiculous argument, especially considering that they weren't even buying tickets on Southwest's website -- just gathering the data. Southwest Airlines has every right to use technological means to try to block SWMonkey, but to sue them for "breach of contract"? Come on. Even worse, Southwest falsely claims that it "has been and will continue to be damaged as the result of Defendant's breach of the User Agreement." That's complete nonsense. The guys shut down the service. There is no continuing damage at all -- other than the damage to Southwest's reputation for filing this bullshit lawsuit.

From here, we'll jump to claim five before going back to the others, because it's similar to claim one. This is an infamous CFAA claim. For many, many, many years we've written about how the CFAA -- a law designed to be used against computer hacking -- has been twisted and abused to go after people for merely violating a terms of service. Thankfully, back in 2012, courts ruled that merely violating a terms of service does not automatically make it a CFAA violation. Similarly, just last year a court ruled that scraping of publicly accessible data is also not a CFAA violation. Those ruling are in different circuits, so not binding in Texas where Southwest filed, but still.

The one case that Southwest has that does kinda, maybe support its CFAA claim is the awful decision from 2016 in the Facebook v. Power case, where the court said that it can be a CFAA violation if you keep scraping after a cease and desist letter has been sent. Again, we think that's an incorrect reading of the law -- but even if it is how the courts are now reading the CFAA it should not apply here because SWMonkey STOPPED SCRAPING after receiving the cease and desist. At worst, Southwest could argue that they kept scraping for another week while they reviewed things with a lawyer, before deciding to stop offering the service. But after a legal review, they shut it down.

But, that's not what you'd get from reading the bullshit claims from Southwest:

Upon information and belief, Defendants have intentionally accessed and
continues to access Southwest’s computers without authorization or in excess of authorized
access, and through interstate communication, obtained information from Southwest’s computers
in violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030(a)(2)(C).

Defendants’ unauthorized access of a protected computer has caused damage and
is continuing to cause damage to Southwest, including loss arising from the cost of responding to
and investigating Defendants’ unauthorized access, which has amounted in an aggregated loss of
at least $5,000 during a one-year period.

Defendants’ conduct has harmed and will continue to harm Southwest. As a
result, Southwest has suffered and will continue to suffer losses and irreparable injury, in
amounts not yet ascertained.

Southwest’s remedy at law is not itself adequate to compensate it for injuries
inflicted by Defendant.

What a load of crap. Remember, the service made all of $45 and then was turned off. The only thing left now is the website. To claim that it's causing all this damage and "will continue to harm Southwest" is complete and utter bullshit. Southwest spent nearly 10x more for just the filing fee alone on this lawsuit than SWMonkey made in the two or so weeks that its site operated.

A bunch of the claims are basically variations on trademark infringement. Again, as noted above, SWMonkey's use of the term "Southwest" was clearly nominative fair use. Incredibly, Southwest feels the need to highlight a whole bunch of other trademarks it holds, even though SWMonkey doesn't make use of any of them. This includes things like "Southwest Cargo," "SWABIZ," and "SWACARGO.COM." The whole point of this seems to be to flood the judge in the case with nonsense about "we own trademarks!" even if those trademarks are not used at all by SWMonkey.

There's also a claim of "unfair competition" which... also appears to be total nonsense. The site was not in competition with Southwest. It was designed to make Southwest's ticketing a better experience for fliers. And, this may be my favorite line in the lawsuit:

In addition, Southwest has suffered and will continue to suffer losses and
irreparable injury to its business reputation and goodwill.

WHAT? First off, the site itself created no harm to Southwest's business reputation or goodwill. Instead, it actually reminded people that Southwest has a pretty awesome policy of letting fliers exchange tickets at no extra cost. That's a kind of cool business model choice that Southwest Airlines made. If it doesn't like people actually using that offer, then it should stop offering it.

And, more to the point: what is harming Southwest's business reputation and goodwill more? A site that helped fliers get cheaper tickets by properly using Southwest's own policies or Southwest filing a bullshit lawsuit with a ton of bogus claims against a small website that had already ceased offering the service Southwest objected to? I've already stated that this lawsuit has convinced me to stop flying Southwest. The SWMonkey site probably would have made me fly Southwest more.

Count six then involves "violations of Texas Penal Code §33.02" though, tellingly, refuses to detail what those violations are. 33.02 appears to be more or less a state version of the CFAA. But only the criminal parts. Perhaps I'm missing something in reading the code, but there does not (at first glance) appear to be a civil component. And yet, Southwest still includes it in the lawsuit -- despite the warning from SWMonkey's lawyer that it is a violation of Texas Disciplinary Rules of Professional Conduct to threaten criminal charges to gain advantage in a civil matter.

In short, almost everything about this lawsuit is complete bullshit and it makes Southwest -- whose entire reputation is built on its consumer friendly policies -- look like complete and utter assholes. There is no way around this. Southwest had already bullied these two guys into shutting down what appeared to be a useful service that helped Southwest customers make use of Southwest's own stated policies. And then, after the service was shut down, still filed a completely bullshit lawsuit, with a bunch of bogus claims, falsely stating that the service was still running, despite knowing that was false.

Southwest, in the lawsuit, says that SWMonkey continues to harm its reputation. That is only true so far as the fact that Southwest decided to file this totally bullshit lawsuit over the no longer working SWMonkey website. Southwest and its lawyers should feel ashamed -- and anyone who flies Southwest ought to consider whether this is the kind of company they want to give money to.